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In recent weeks there has been a lot of discussion about how to deal with trolls making repeated threats of violence or rape via social media. In particular, the stream of abuse targeted at Caroline Craido-Perez and Stella Creasy MP on Twitter following the announcement that Jane Austen was to be the next person to be represented on the UK £10 note , thus being the only woman depicted on any bank note other than the Queen, has significantly raised this issue.

Most of the discussion has concentrated upon use of the criminal law to stop trolls, but there are problems with that approach. For example, the 32 year old man arrested in Bristol on 7 August 2013 in connection with tweets to Caroline Craido-Perez and Stella Creasy is reported to have been arrested under the Protection from Harassment Act 1997. This deals with a course of conduct against another person. What if the troll only sends one or two harassing communications to each target, but sends hundreds of communications?

In this post I suggest that the regulatory tools exist to tackle trolls, were the problem of trolling considered to be sufficiently serious for regulatory action.

The one body the has so far not entered the debate or been questioned about its response to trolling is Ofcom, the regulator for electronic communications networks and services in the UK. This is a surprise, given that one of the sections of the Communications Act 2003, for which Ofcom is the proper enforcement body, seems at first glance to be an anti-trolling provision. The section concerned is section 128 of the Communications Act 2003, the first section under the cross-heading ‘Persistent misuse of networks and services ‘. The provision includes:

(5) For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—

(a) the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or

(b) he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

(6) For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—

Given that these statutory clarifications on what is meant by ‘misuse’ and ‘persistent misuse’ in the 2003 Act pre-date the modern social media concept of trolling, they are not a bad description of what trolling is. Section 128 describes a neat regulatory set of powers for Ofcom to give notice to a persistent misuser to stop misusing, with additional sections setting out how the notice can be enforced. This includes Ofcom having the powers to impose penalties of up to £5,000 as well as seeking a court injunction against a person ignoring a notice (so breach of that injunction would be a contempt of court, with penalties including a fine of up to £2,500 and imprisonment for up to 2 years – section 14 Contempt of Court Act 1981).

However, how can Ofcom serve a notice on a troll (who will typically be anonymous)? It would be perfectly possible for Ofcom to use its information gathering powers, rather than go to court to obtain a Norwich Pharmacal Order for each troll. These are set out at sections 135-146 of the Communications Act 2003, under the cross-heading ‘Information Provisions’. Of interest here is that Ofcom can seek information from parties in addition to communications providers. In particular, section 135(2)(f) allows Ofcom to request information from “a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.”

There is no reason why this could not include Twitter UK Ltd, even though, as Twitter UK Ltd was at pains to point out in a statement to the Leveson Inquiry, it has technically nothing to do with the Twitter service. Twitter UK’s registered office is 100 New Bridge Street, London EC4V 6JA, the same address as the international law firm Baker & McKenzie. If Baker & McKenzie are Twitter UK’s solicitors, I am sure they could advise Twitter that Ofcom’s information gathering powers are broad and do come with some teeth, so that eventually Ofcom would be able to get the information it required. Even so, given the current interest in addressing trolling via Twitter, it would be a further PR disaster for Twitter UK to be seen to avoid information requests from Ofcom on the grounds that the Twitter services was nothing to do with it, the UK entity, but only a matter for the US Inc.

So, using section 135 information requests, Ofcom could obtain the IP address of trolls via Twitter and UK ISPs, and contact details for that IP address. With that information a section 128 persistent misuse notice could be served, and the troll told to behave or be cut off.

This route could also address the question of trolling via multiple accounts and/or different social media platforms. The notice is not limited to one account on one communications platform; the misuse must be by one person. Section 128(7) states:

For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—

(a) that the misuse was in relation to a network on some occasions and in relation to a service on others;

(b) that different networks or services were involved on different occasions; and

(c) that the persons who were or were likely to suffer annoyance inconvenience or anxiety were different on different occasions.

It would therefore catch a person trolling using multiple accounts on Twitter, Facebook etc. to different targets.

However, there is a potential gap in this approach. What if the target of the trolling is, as recent examples have shown, on the receiving end of an avalanche of abuse or is being flamed? The avalanche could be the result of a mass of single communications from individual persons, each of whom may not be persistently misusing.

The radical answer, which may not stand up to regulatory scrutiny, is to suggest that it is possible to serve the persistent misuse notice not on the individual trolls, but on the person providing the platform upon which the trolling occurs. There is no precedent for this extended use of section 128, which to date has been used by Ofcom to shut down the misuse of automatic calling systems generating abandoned or silent calls (eg section 128 notice on HomeServe plc). The Ofcom argument would have to be that the notice recipient, by providing a platform with no effect monitoring or abuse notice and protection systems to protect users from unnecessarily to suffer annoyance, inconvenience or anxiety, is the person upon whom a section 128 notice can be served. The Ofcom notice could demand that a proper anti-trolling and/or abuse notice system be put in place, as in section 129 it states:

(2) OFCOM may give the notified misuser an enforcement notification if they are satisfied—

(a) that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and

(b) that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—

(i) securing that his misuse is brought to an end and is not repeated; and

(ii) remedying the consequences of the notified misuse.

In practice, however, I don’t expect Ofcom to go anywhere near the trolling controversy. Regulation of networks and services is carried out by that part of Ofcom that can trace its roots back to Oftel. From the earliest days of telecommunications regulation, telecommunications (now electronic communications) regulators have sought to distance themselves from any requirement to regulate content.

To adapt my own opening, you may have thought that experienced public relations professionals would realise that there is no such thing as impartiality in the press, but the press release of Lord Bell of Chime Communications suggests this is not the case.

I’ll follow the format of my last blog, too.

Blogs and websites

Firstly, as I said before, blogs, bloggers and their websites have little restrictions on what they do or say. So in the context of the Chime Communications press release, bloggers can be as underhand, unethical and improper as they like. Their reporting of a matter can be as impartial, not even-handed and deliberately slanted as they want.

Press media

For press media, there is little legislation above what applies to bloggers. When it comes to the increased, self-imposed regulation of the Press Complaints Commission (PCC) and its Editors’ Code, there is not much to add on impartiality. The press only have some duties concerning accuracy. Article 1 of the Code states:

1 Accuracy

i) The press must take care not to publish inaccurate, misleading or distorted information, including pictures.

ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.

iii) The press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.

iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

The use of subterfuge was addressed in my last blog – I note that Chime Communications have not stated why the public interest defence does not apply to its use by BIJ for the sting. Impartiality or partisanship is the name of the game for the press, which a PR would know, surely?

Broadcast media

Lastly, there is the broadcast media. Here, fairness and impartiality is an issue, with a whole section dealing with fairness (Section 7). So perhaps in a broadcast of the BIJ story, there would have to have been some programme time devoted to a right to reply (see Section 7.11 and 7.12 of the Broadcasting Code), once the use of deception could be justified by the public interest test in the Code to permit the programme to air in the first place.

So given that the BIJ website and The Independent could be quite impartial, what is the Chime Communications press release trying to say? Sorry?

You may have thought that experienced public relations professionals would realise that there is no such thing as a private or “off the record” briefing, but the report last week from the Bureau of Investigative Journalism (BIJ) into the activities and practices of Bell Pottinger (BP) suggests this is not the case.

The BIJ used what is colloquially called a sting by posing as potential clients from a regime with questionable human rights and anti-corruption credentials, to reveal boasts from BP of what it could do in terms of media management and lobbying on behalf of a less desirable client, if that client showed commitment to a reform agenda. The sting included the use of hidden cameras and recording equipment, in what many consider to be tactics close to being entrapment.

The BIJ published its report, including video clips, on its website. The report was picked up by a number of press and broadcast media channels.

The story therefore provides a neat example of the difference in regulation between bloggers/websites, press media and broadcast media. This could not be more topical, as the Leveson Inquiry considers press regulation.

Blogs and websites

Firstly, blogs, bloggers and their websites have little restrictions on what they do or say. Only privacy and libel laws (together with specific legislation such as provisions concerning incitement to racial or religious hatred in the Public Order Act 1986) limit how and what is reported – it is accepted that current libel law as practiced in England and Wales may have a significant chilling effect on free speech, so that this is no trivial “only”. Assuming that there is no libel involved in the BIJ exposé as it merely faithfully reports BP’s own statements, then the question here is the methods used to get those statements. There are no specific laws against the use of surreptitious recording, if the recording does not involve interception of electronic communications within the scope of the Regulation of Investigatory Powers Act 2000 (eg hacking or phone monitoring) or unauthorised access to computers within the scope of prohibitions in the Computer Misuse Act 1990. The Data Protection Act 1998 might have relevance, but then within it is a journalism defence (section 35), which applies when the material processed is intended for any form of publication in the public domain and the publisher reasonably believes the publication is in the public interest. Although it does not say so explicitly, this publication must include blogs and websites.

A person seeking to challenge the publication could complain to the Information Commissioner, who has the power to levy monetary penalties of up to £500,000 for serious breaches of the Data Protection Act 1998, but to date there has not been a case involving a failed section 35 defence. Action in the courts is possible (but expensive), but the level of damages is low – the most publicised case involved Naomi Campbell (Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB), subsequently upheld by the House of Lords [2004] UKHL 22). Although not clearly identified as such, it would seem that her data protection damages amounted to a modest £1,000, out of a total award of £3,500 damages for breach of the Data Protection Act 1998 (damages for distress under section 13) and for breach of confidentiality.

More importantly, for private individuals’ blogs, it is arguable that any processing by them would be within the domestic purposes exemption (section 36), but this does depend upon how the law develops to interpret what are “recreational purposes” within that exemption.

Press media

For press media, there is little legislation above what applies to bloggers. The difference is that there is an increased level of self-imposed regulation, under the Press Complaints Commission (PCC) and its Editors’ Code. Article 10 of the Code states:

10 Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

However, these restrictions can be disregarded in the public interest, if an editor reasonably believed prior to publication that publication or journalistic activity prior to publication was in the public interest. Note that in dealing with any complaint about use of clandestine devices and subterfuge, the PCC can take into account “the extent to which material is already in the public domain, or will become so”. Does this mean that once information obtained by subterfuge is out in the public domain, it is fair game for press media to republish it?

The real question for the Leveson Inquiry is what happens when there has been a breach of the PCC Code. It is widely suggested that the PCC is too ready to find that there is public interest. Even when it finds that there is no public interest to warrant the breach of the Code, it is arguably toothless, so that remedies for the victim are derisory.

Broadcast media

Lastly, what if the BIJ report had been broadcast on the Channel 4 Despatches programme, which appears to take some indirect flack from BP? Channel 4 is subject to the Broadcasting Code, regulated by Ofcom. Section 7 of the Broadcasting Code includes:

Deception, set-ups and ‘wind-up’ calls
7.14 Broadcasters or programme makers should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or recording.) However:
• it may be warranted to use material obtained through misrepresentation or deception without consent if it is in the public interest and cannot reasonably be obtained by other means;
• where there is no adequate public interest justification, for example some unsolicited wind-up calls or entertainment set-ups, consent should be obtained from the individual and/or organisation concerned before the material is broadcast;
• if the individual and/or organisation is/are not identifiable in the programme then consent for broadcast will not be required;
• material involving celebrities and those in the public eye can be used without consent for broadcast, but it should not be used without a public interest justification if it is likely to result in unjustified public ridicule or personal distress. (Normally, therefore such contributions should be pre-recorded.)

So if a victim of deception complained to Ofcom, would the outcome be as weak as for the PCC?

This is where there is a marked difference between press and broadcast regulation. Whilst the actual regulations may be similar (see the above rules on deception/subterfuge), the penalties for getting it wrong as a broadcaster can be steep. Ofcom can fine up to £250,000 or 5% of a broadcaster’s qualifying annual revenue. The most recent case reported by Ofcom for breach of the fairness rule was a case involving Press TV Limited, who were fined £100,000 on 1 December 2011.

The war between fixed network operators and mobile network operators is a central feature of most mature electronic communications markets, where few operators provide both fixed and mobile networks and services. The UK is no exception.

In the UK the most recent battle in this ongoing war has been in the freephone and local rate calls markets, known by the number prefixes used for the relevant number ranges of 080 (freephone) and 0845/0870 (local call or reduced call rate). In their bid to win customers from each other and reduce their own loss of customers, ie to reduce their churn rate, mobile network operators (MNOs) or their wholesale customers, the mobile virtual network operators (MVNOs) have developed a bewildering array of tariffs. These usually involve a range of bundles for minutes of calls, numbers of text messages and data rates for mobile broadband. A key part of these bundle offerings is the careful selection of which types of calls are included within the minutes permitted in any bundle. In most cases, the MNOs or MVNOs exclude calls to 080 or 0845/0870 numbers (the 08 Calls), perhaps because these calls are almost universally made to fixed network operators’ (FNOs) customers.

As a consequence, MNO and MVNO customers rarely know how much they are being charged to make these 08 Calls (see OFCOM’s Simplifying Non-Geographic Numbers consultation paper of 16 December 2010). The tariffs are not key differentiators or even factors customers consider when selecting an MNO or MVNO. As a result, there is little or no competitive pressure on MNOs and MVNOs for the 08 Calls. It is therefore not surprising that the tariffs charged for these calls can far exceed the network costs to the MNOs of setting up the calls (originating them) and handing them over to the FNOs to route to the called party (or to terminate them). FNOs, on the other hand, as terminating operators, have a monopoly on the market for terminating calls on their networks. Competition law can therefore ensure that the charges the FNOs make to MNOs to terminate the 08 Calls are not abusive, but are fair and non-discriminatory. Consequently, FNOs have long been aggrieved that the majority of revenue generated by for 08 Calls has been retained by the MNOs (and MVNOs).

British Telecommunications plc (BT) was the first to try to change their charges for terminating 080 Calls to get an increased share of this 080 Calls revenue. It was obvious that any change would be opposed by the MNOs. So when BT sought to change their terminating charges by use of Network Charge Change Notices (NCCN), these were disputed by the MNOs. When these disputes could not be resolved, they were referred by the MNOs to the Office of Communications (OFCOM) for resolution using its statutory dispute resolution powers (see sections 185 to 191 of the Communications Act 2003).

OFCOM issued two determinations in respect of disputes between BT and various MNOs regarding BT’s termination charges and its relevant NCCNs:

the second dealing with 0845 and 0870 calls on 10 August 2010 – the MNOs concerned being Vodafone, T-Mobile, Hutchison 3G UK Limited (H3G), O2, Orange and Everything Everywhere Limited (EE). EE is a 50%-50% joint venture between France Telecom and Deutsche Telekom, which was formed from the combination of their UK subsidiaries Orange and T-Mobile, who operated under the name of EE as a single entity from 1 July 2010.

In each determination OFCOM set out a number of near-identical principles, which it used to assess whether BT’s proposed termination charges were “fair and reasonable”. OFCOM considered that BT’s new charges were not fair and reasonable, as in each determination certain of these principles were not met. BT was therefore not entitled to introduce the proposed tariffs.

BT appealed OFCOM’s determinations on both the 080 and the 0845/0870 disputes. BT had no fundamental dispute with the principles used by OFCOM to determine whether the proposed tariffs were fair and reasonable; it merely believed that OFCOM had misapplied its own principles.

EE also appealed OFCOM’s 0845/0870 determination. It’s primary appeal ground was that OFCOM’s principles had failed to address an even more fundamental principle, that BT’s proposed tariffs should be cost-orientated or “cost reflective”. As they were not, they were unlawful. EE’s secondary position was that if OFCOM’s principles for determining the fairness and reasonableness of BT’s tariffs were upheld on appeal, then they had been correctly applied and OFCOM’s conclusions ought also to be upheld.

The Competition Appeal Tribunal (CAT) has recently published its decision in the joined appeals ([2011] CAT 24, 1 August 2011). The CAT had to decide if BT was entitled to impose its proposed tariffs. To do so, the CAT:

reviewed OFCOM’s approach to resolve the tariff disputes, including OFCOM’s setting of its three cumulative principles according to which the fairness and reasonableness of BT’s tariffs were to be judged and their application to the facts;

considered whether OFCOM correctly complied with its dispute resolution powers and the process set out in the Communications Act 2003; and

considered what criteria the CAT must itself apply when hearing appeals of OFCOM’s determinations of disputes.

In a lengthy but well-structured judgement, the CAT had no argument with the principles adopted by OFCOM to resolve the 080 Calls’ tariffs disputes. It found that Principle 1 (that MNOs should not be denied the opportunity in any tariff structure to recover their efficient originating costs for the calls) was satisfied. The CAT also considered that Principle 3 (that the proposed tariff structure was reasonably practical to implement) was also satisfied.

This left Principle 2, which was made up of several parts. Principle 2(i) concerned whether the proposed tariffs had benefits to consumers. Principle 2(ii) concerned whether the tariffs avoided material distortion of competition. The CAT did not see how these were cumulative principles so that if either one failed, a new tariff could not take effect. Most importantly for future developments in the electronic communications market and its regulation, the CAT considered that OFCOM had failed to take into account a third factor: the contractual rights of BT.

The CAT believed that Principle 2(ii) concerning distortion of competition was satisfied; the imposition of a “stringent test for the introduction of price changes” by BT itself had the effect of distorting competition by placing a restraint on BT and other operators who wishes to impose similar laddered pricing structures. On Principle 2(i), the CAT did not say that it found the proposed tariffs to be beneficial to consumers; it considered that the outcome was inconclusive. However, it did criticise OFCOM for failing to take into account BT’s relevant market share in the call-hosting market, which, being limited, would dilute the impact of BT’s proposed tariffs. The CAT did not consider that the correct test was that the new tariffs had to be shown to benefit consumers, as this placed undue importance upon OFCOM’s own policy preference over Principle 2(i) and BT’s contractual rights. Instead, this policy preference could only have overridden the other factors OFCOM considered if it could have been clearly and distinctly demonstrated that the new tariffs would act as a material disbenefit to consumers. An inconclusive finding by OFCOM was not enough to override BT’s contractual rights.

The CAT has therefore recognised the importance of freedom of contract in the promotion of competition. As an aside, this is exactly the argument put forward by Cable & Wireless, as an intervener and FNO in support of BT (see the closing arguments of Daniel Beard QC).

So who lost? This is a difficult question, but on one level the losers may be mobile phone customers. Clearly the MNOs were making healthy profits on their 080 Calls, using this additional revenue to cross-subsidise their bundle packages. These bundles may now reflect more their underlying costs, or in EE’s words, be “cost-reflective”, as more of the 080 Calls revenue is shared with FNOs.

As an aside, it became clear during the dispute from OFCOM’s draft determinations that a retail price of 12.5ppm was a rate that permitted MNOs on average to recover their efficient costs of originating calls to FNOs, both for 080 Calls and to geographic numbers. This rate is therefore is a useful benchmark with which consumers can check the tariffs being offered to them by MNOs and MVNOs.

[Disclaimer: I led the Charles Russell LLP team that acted for Cable & Wireless in the CAT. All information in this post is, as far as I am aware, available in the public domain. Any views expressed here are strictly my own and not those of Charles Russell LLP or Cable & Wireless.]

This excellent graphic from Arbor Networks shows how Internet traffic to and from Egypt fell off a cliff between 27 and 28 January 2011. At about the same time mobile phone operators in Egypt reported that they were required to close down their networks in certain areas of the country.

On Thursday, 11 August 2011 David Cameron made a lengthy statement in the House of Commons to open the parliamentary debate on public order, following extenisve rioting in London and other English cities. Notably, he said:

Everyone watching these horrific actions will be struck by how they were organised via social media. Free flow of information can be used for good, but it can also be used for ill, so we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality.

Could the UK Government follow Egypt and order an Internet blackout and mobile phone network shutdown, or at least block access via Internet (including by mobile phone) to social media platforms?

Internet Blackout

The Communications Act 2003 contains a broad power that could be used by a Secretary of State to close down or restrict access to the Internet, at least by ordering UK-based communications providers to close or restrict access to any international gateways. Section 132 begins:

132 Powers to require suspension or restriction of a provider’s entitlement

(1) If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a) to protect the public from any threat to public safety or public health, or

(b) in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2) OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3) A direction under this section is—

(a) a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) a direction that that entitlement is restricted in the respects set out in the direction.

Whilst the word “reasonable” gives any affected communications provider the hope that a capricious direction of the Secretary of State could be reined in by an urgent judicial review, what amounts to a critical threat to public safety or, especially, national security is not a judgement a court is likely to wish to overturn. In any event, section 132 can itself be considered unnecessary in the light of Part 2 of the Civil Contingencies Act 2004.

This part of the 2004 Act replaced the Emergency Powers Act 1920. It is highly recommended reading for any conspiracy theorist or anyone deeply cynical about the ability of politicians to act reasonably and sensibly in the event of any serious emergency affecting the UK. In summary, the 2004 Act gives the Executive extraordinary powers to make emergency regulations. Providing by regulation that internet service providers must deny access to international gateways or particular websites or servers could easily be achieved.

Mobile Phone Network Shutdown

The Secretary of State would not even need to consider making emergency regulations under the 2004 Act in order to shut down mobile phone networks. A direction made under Section 132 of the Communications Act 2003 would suffice. Each of the mobile phone operators has in their Wireless Telegraphy Act licences a provision in the same or substantially the same form as the following:

Ofcom may in the event of a national or local state of emergency being declared require the Radio Equipment to be modified or restricted in use, or temporarily or permanently closed down either immediately or on the expiry of such period as Ofcom may specify. Ofcom shall exercise this power by a written notice served on the Licensee or by a general notice applicable to holders of this class of Licence. (See Ofcom’s Template 2G Licence.)

So once Ofcom got the direction from the Secretary of State, it would have to do the dirty work and order the mobile phone operators to close down their networks.

Interception of Social Media

From David Cameron’s statement quoted above, it would appear that the Government’s thinking is that social media networks would be closed down when it was suspected or known that “violence, disorder and criminality” was being plotted. This implies that there will need to be monitoring of these networks. The problems in carrying out this monitoring are technical, not legal. All that would be required legally is an interception warrant made under section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA):

5 Interception with a warrant

(1) Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following—

(a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;

(b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;

(c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;

(d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.

(2) The Secretary of State shall not issue an interception warrant unless he believes—

(a) that the warrant is necessary on grounds falling within subsection (3); and

(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime;

(c) for the purpose of safeguarding the economic well-being of the United Kingdom; or

(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.

(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.

(5) A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.

(6) The conduct authorised by an interception warrant shall be taken to include—

(a) all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;

(b) conduct for obtaining related communications data; and

(c) conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.

This looks like a very broad power to me. However, the media stories about the London riots have focussed on the alleged widespread use of BlackBerry Messenger. This is a secure closed network. Would this mean the plots on BlackBerry would not come to the notice of criminal intelligence officers? As has been demonstrated in the Middle East, Research in Motion can come to an accommodation with national security authorities that meets their eavesdropping requirements. If Research in Motion did not want to cooperate, then arguably there exists a robust regime in Part III of RIPA that would enable investigatory authorities to obtain the necessary codes, particularly as the grounds set out in section 49 for the requirement to release keys are essentially the same as in section 5 for interception.

Human Rights?

What about human rights, you might ask? Article 10 of the European Convention on Human Rights is supposed to grant a right to freedom of expression, isn’t it? However, as even Wikipedia’s Article 10 page helpfully points out, this is not an unqualified right. Where in accordance with the law (see above) and necessary in a democratic society, the right can be restricted.

So, although the steps outlined by the Prime Minister in the House of Commons debate seem an extreme response to rioting, the legal tools are already in place to enable the UK Government to do exactly what the Prime Minister has proposed.